John David Smith seeks post-conviction relief from a plea bargain and 20 year
sentence. We agree in part and reduce his sentence by four years.
However, his theft of a check book and subsequent forgery and deposit
of six of the checks at six different banks at six different times
was not a single episode of criminal conduct. As such, he is
not entitled to the sentencing limit the Legislature has placed on single episodes.

Background

On October 18, 1996, Defendant stole a checkbook from Horace Harvey, his then-grandparent-in-law.
This checkbook was for a bank account that Mr. Harvey held in
trust for his sister, Geraldine Harvey. Defendant proceeded to write out six
checks to himself and forged Mr. Harveys signature. Over the course of
three hours in the afternoon of October 18, Defendant deposited these six checks
into his Bank One account, going to six different branches in Marion County.
The amount of money stolen from Horace and Geraldine Harvey amounted to
over $17,000.

Defendant was arrested and charged with six counts of theft, six counts of
forgery, and one count of burglary on January 9, 1997. In exchange
for having the burglary charge dropped, Defendant pled guilty to the six counts
of theft and six counts of forgery on Febr
uary 28, 1997. The
plea bargain allowed a maximum sentence of 20 years. However, on March
27, 1997, Defendant orally moved to withdraw his guilty plea. The trial
court denied Defendants motion after viewing the videotape of the February 28 hearing.
The trial court imposed a combination of concurrent and consecutive sentences totaling
six years on the theft counts and 14 years on the forgery counts
for a grand total of 20 years executed time.

Defendant then filed a pro-se petition for post-conviction relief on April 23, 1997,
which was amended by counsel on August 18, 1999. The post-conviction court
denied relief both on the merits and on grounds of laches and Defendant
appealed this denial to the Court of Appeals. The Court of Appeals
held that Smiths guilty plea was unintelligent and therefore invalid on two grounds.
First, he had not been advised by counsel or the court that
if he did not plead guilty and went to trial he could only
be convicted of one count of theft (rather than the six with he
was charged) because in stealing a single checkbook he had only committed one
larceny. Second, he had not been advised by counsel or the court
that if he did not plead guilty and went to trial the maximum
sentence he could receive for one count of theft and six counts of
forgery was limited to ten years (compared to the maximum of twenty authorized
by the plea) under Indiana Code § 35-50-1-2(b) because the conduct constituted a
single episode of criminal conduct.
See footnote
Smith v. State, 748 N.E.2d 895, 903
(Ind. Ct. App. 2001).

We granted transfer in this case to address whether certain conduct with which
Smith was charged constitutes a single episode of criminal conduct under Indiana Code
§ 35-50-1-2(b) (1996 Supp.). If it does, the statute limits the total
sentence that can be imposed for all of the charges comprising the episode.
Specifically, where a defendants crimes amount to a single episode of criminal
conduct, the trial court cannot not impose consecutive sentences greater than the presumptive
sentence for a felony which is one (1) class of felony higher than
the most serious of the felonies for which the person has been convicted.
§35-50-1-2(c).
See footnote

Smith contends that the conduct at issue constituted a single episode and that
under the statute the maximum sentence that he could have received was ten
years.
See footnote
He further contends that, had counsel or the court advised him
about the single episode statutes limit, he would not have entered into a
plea agreement that permitted the trial court to impose a sentence of up
to 20 years. As such, he claims that his guilty plea was
not made knowingly, intelligently, and voluntarily; that his guilty plea was illusory; and
that he was denied the effective assistance of counsel to which he was
entitled.

The Court of Appeals discussed this provision in Tedlock v. State, 656 N.E.2d
273, 275 (Ind. Ct. App. 1995). There the Court of Appeals held
that where a complete account of a crime can be given without referring
to the other offense, the offenses are not a single episode of criminal
conduct. Id. at 276. In Tedlock, the defendant had fraudulently sold
securities on four occasions and as the Court of Appeals analogized, [t]hat Tedlock
sold the same type of security to each of his victims does
not make all four transactions one criminal episode any more than a robbers
use of the same gun to commit four different robberies upon four different
victims on four different occasions would constitute one criminal episode. Id.

In considering whether a series of offenses constitutes a single episode of criminal
conduct,
Tedlock emphasizes the timing of the offenses. Citing the American Bar
Association standard, Tedlock refers to the simultaneous and contemporaneous nature of the crimes
which would constitute a single episode of criminal conduct. Tedlock, 656 N.E.2d
at 276 (citing State v. Ferraro, 800 P.2d 623, 628 (Haw. Ct. App.
1990)).

Here, Defendant stole from two victims, Horace Harvey and Geraldine Harvey. D
efendant
stole one checkbook on October 18, 1996, and proceeded to deposit six checks
at six different banks in the Marion County area. The six checks
were deposited within the course of the afternoon on October 18, 1996.
Looking at the timing of the deposits, we find that they were not
simultaneous nor were they contemporaneous with one another. Tedlock, 656 N.E.2d at
276. Defendant went from one bank branch to another branch, with about
a half hour to an hour between visits, depositing checks (not in numerical
order) for differing amounts of money. The first visit was at 1:23PM,
depositing check #480 in the amount of $2700. The second visit was
at 2:23PM, depositing check #476 in the amount of $3500. The third
visit was at 2:41PM, depositing check #477 in the amount of $3195.
The fourth visit was at 3:09PM, depositing check #479 in the amount of
$3000. The fifth visit was at 3:51PM, depositing check #481 in the
amount of $3000. The sixth, and last, visit was at 4:09PM, depositing
check #482 in the amount of $1800.

In addition, we can recount each of the forgeries without referring to the
other forge
ries. Each forgery occurred at a separate time, separate place and
for a separate amount of money from the other. We are satisfied
that Defendants conduct does not constitute a single episode of criminal conduct under
Indiana Code §35-50-1-2.

II

Having resolved that Smiths theft of the checkbook and serial forgeries did not
constitute a single episode of criminal conduct for purposes of the sentence limitation
statute, we now turn to resolving Smiths claim for post-conviction relief.

The post-conviction relief Smith seeks is the invalidation of the plea agreement he
e
ntered into and the subsequent convictions and sentence imposed by the trial court.
As noted, the Court of Appeals granted him that relief based in
part  but only in part  on its erroneous conclusion on the
single episode of criminal conduct issue. Because we have reversed the Court
of Appeals on that issue, we must now look at Smiths claim for
relief as a whole to determine whether he is entitled to relief on
any other basis.

Smith advances four arguments for relief: that his plea, convictions, and sentence should
be vacated because (1) his plea lacked an adequate factual basis, (2) his
plea was not knowing, voluntary, or intelligent, (3) the plea agreement was illusory,
and (4) he would not have entered the agreement but for the ineffective
assistance of his counsel. At the trial on his petition for post-conviction
relief, Smith had the burden of establishing his grounds for relief. Ind.
Post-Conviction Rule 1(5). The post-conviction court rejected each of these four arguments.
Therefore, he is now appealing from a negative judgment. When an
appeal is from a negative judgment, a court on review must be convinced
that the evidence as a whole was such that it leads unerringly and
unmistakably to a decision opposite that reached by the trial court.
Spranger
v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). It is only where
the evidence is without conflict and leads to but one conclusion, and the
trial court has reached the opposite conclusion, that the decision will be disturbed
as being contrary to law. Id. (quoting Fleenor v. State, 622 N.E.2d
140, 142 (Ind.1993), cert. denied, 513 U.S. 999 (1994)).

To the extent that Smiths claims for post-conviction relief are grounded in his
conte
ntion that he did not receive the minimum level of effective assistance from
his trial counsel that the Constitution requires, we analyze such claims according to
Segura v. State, 749 N.E.2d 496 (Ind. 2001).

A post-conviction claim of ineffective assistance of counsel requires the defendant to show
two things: first, that counsels performance fell below an objective standard of
reasonableness, and, second, a reasonable probability that, but for counsels unprofessional errors, the
result of the proceeding would have been different. Id. at 500-01 (citing
Strickland v. Washington, 466 U.S. 668, 687-88 (1984)).
Segura categorizes two main types of ineffective assistance of counsel cases. The
first is where the defendants lawyer fails to advise the defendant on an
issue that impairs or overlooks a defense. The second type of case
is where the defendants lawyer incorrectly advises the defendant as to penal consequences.
Id. at 500.

A

Smiths contention that his guilty plea lacked a factual basis is derived from
his argument that although he pled guilty to six separate counts of theft,
the evidence most favorable to the State reveal[ed] only one single act of
stealing one single checkbook. The post-conviction court did not squarely address this
issue. In the Court of Appeals, the State did not seriously contest
Smiths argument that, had he gone to trial, he could not have been
convicted and sentenced for more than one count of theft. The Court of
Appeals found that, while the State had discretion to charge Smith with six
theft counts, he could not have been convicted and sentenced on more than
one count because the theft of the checkbook constituted a single larceny.
Smith, 748 N.E.2d at 901. The State does not contest this determination
on transfer and we summarily adopt the position of the Court of Appeals
pursuant to Indiana Appellate Rule 58(A)(1).

Without belaboring the point, we find that Smith is entitled to relief because
we think he has made out a colorable claim of ineffective assistance of
counsel on this issue. Ho
wever, we are not convinced that even if
Smith could not have been convicted and sentenced following a trial for more
than one count of theft, his plea lacked an adequate factual basis.
See Games v. State, 743 N.E.2d 1132, 1135 (Ind. 2001) (Defendants who plead
guilty to achieve favorable outcomes in the process of bargaining give up a
plethora of substantive claims and procedural rights.).

Utilizing the
Segura formulation, Smith has shown that his attorneys performance during the
plea bargaining process fell below an objective standard of reasonableness. Segura, 749
N.E.2d at 500-01. As Smith points out, his attorney should have advised
him of the single larceny rule. During the post-conviction trial, Smiths attorney
testified that he had heard of the single larceny rule but could not
summarize the rule. (R. at 296) Smith is correct in his
contention that had he gone to trial, he would not have been convicted
of six counts of theft. Rather, he would (at most) have been
convicted of just one count of theft. See Segura, 749 N.E.2d at
501. Therefore, Smith would have had a more favorable outcome at trial
on this issue.

Although we find Smith is entitled to relief on this issue based on
ineffective assi
stance of counsel, this does not entitle Smith to start the entire
process over. We discuss Smiths remedy in part III, infra.

B

Smiths contention that his guilty plea was not made knowingly, intelligently, and voluntarily
is derived from his argument that the conduct with which he was charged
constituted a single episode of criminal conduct and so his potential sentence was
limited by Ind. Code § 35-50-1-2(c) to ten years. Had I known
that the maximum sentence that could have been imposed was ten years, Smith
in effect argues, I would not have entered into an agreement with the
State which permitted a sentence of twenty years to be imposed. Smith
is not entitled to relief on this basis because we have concluded in
part I of this opinion that the sentence limiting statute does not apply
here.

First, he says that he was charged with burglary but that he could
not have been co
nvicted because there was never any evidence of an unlawful
breaking or entering. Thus, the States promise to drop the burglary charge
in return for the plea bargain was illusory. On this issue, the
post-conviction court found:

45. That there was a reasonable basis to believe that the d
efendant/petitioner could have
been convicted of Count I-Burglary, class B felony as alleged in the charging
information.

46. That it is true that mere presence at a crime scene is not
sufficient to sustain a conviction for Burglary, the unchallenged evidence shows not only
was the defendant/petitioner at the scene of the Harvey household when the check[s]
were stolen, he was in possession of recently stolen checks, which is sufficient
to satisfy a conviction of Count I-Burglary, class B felony.

The post-conviction court was incorrect in saying that this evidence would have been
enough to satisfy a conviction for burglary because, as Smith points out, it
does not include any evidence of breaking and entering. But we have
never required the State to be able to demonstrate evidence on every element
of an offense in order to file a charge or utilize a potential
charge in plea negotiations. Here the State argues that the State could
have presented evidence that Smith had illegally entered the Harveyss home and took
the checks. (Brief of Appellee at 10.) More to the point,
the State correctly argues that:

While the State did not present evidence establishing an illegal entry at the
post-conviction hearing, Smith did not eliminate the possibility of the States ability to
do so should the charge go to trial. [Smiths counsel] testified that
he was concerned about the possibility of finding an unlawful[ ] entry.
Smith fails to show that the evidence led without conflict to a conclusion
contrary to the post-conviction courts finding that a reasonable basis existed to believe
that Smith could have been convicted of the burglary.

Id. at 11. Here, the State had discretion to file burglary charges
against Smith. Marshall v. State, 590 N.E.2d 627, 631 (Ind. Ct. App.
1992), trans. denied. We do not find that the burglary charge was
an improper threat that made Smiths plea agreement illusory.

Second, Smith says that he was improperly charged with six separate counts of
theft where the facts only support one count. Again, the State had
unlimited discretion to charge Smith with multiple counts of theft, as the Court
of Appeals has stated, [a]lthough a defe
ndant charged and found guilty may not
be convicted and sentenced more than once for the same offense or for
single larceny, the State has unrestricted discretion to file alleged repetitive charges.
Marshall, 590 N.E.2d at 631 (footnote omitted). The States actions here were
not improper, and in any event, we have already found that Smith is
entitled to relief on the single larceny rule issue under an ineffective assistance
of counsel analysis in part II-A.

Lastly, Smith says that the third improper threat made by the State was
the threat of his sentence if he did not agree to the plea
bargain. Smith says that the State threatened him with maximum consecutive sentences
that totaled sixty-six years. Smith bases this claim on the assumption that
his actions constituted a single episode of conduct. However, as we di
scussed
in part I, Smiths actions did not constitute a single episode of conduct.
As such, Smith was not entitled to the sentencing limit the Legislature
has placed on a single episode.

III

In the Court of Appeals, the majority vacated Smiths convictions and sentences, thereby
giving him the opportunity to be prosecuted for his alleged conduct. In
dissent, Judge Baker viewed the case as essentially one of correcting an erroneous
sentence. Because the Court of Appeals found that Smiths sentence was required
to be capped at ten years, Judge Baker argued that the Court of
Appeals should simply vacate the five erroneous theft convictions and reduce the sentence
to ten years.

Had we agreed with the Court of Appeals that there was a single
episode of criminal conduct here triggering the ten year limitation, we would agree
with Judge Baker. Ho
wever, we have found that the ten year limitation
does not apply but do agree with the Court of Appeals that the
five erroneous theft convictions should be vacated. The trial court imposed a
two-year sentence for each theft conviction, in a combination of consecutive and concurrent
sentences for a total of six years, and a total of 14 years
for the six forgery convictions. Adopting Judge Bakers general approach, we reverse
five of the theft convictions and the respective sentences thereof, thereby leaving one
theft conviction and the six forgery convictions in place with a total sentence
of 16 years.

Conclusion

Having granted transfer, we affirm in part and reverse in part the judgment
of the post-conviction court and remand this matter with instructions that Smiths convictions
and sentences for theft on counts III through VII be vacated. His
convictions for theft on count II and forgery on counts VIII through XI
and the aggregate 16 year executed sentence therefor are affirmed.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

Footnote: The Court of Appeals also rejected the States argument that Smiths claim
was barred by l
aches. On transfer, the State does not contend that
this issue was wrongly decided. Footnote: Provisions of the statute relating to crimes of violence, habitual offenders, and
habitual su
bstance offenders are not implicated in this case.Footnote: Ten years is the presumptive sentence for a felony which is one
class of felony higher than the most serious felony to which Smith pled
guilty. Ind. Code §35-50-2-5 (1993).